“Pregnancy: Rights under Disability, FMLA and Discrimination laws.”

Question: I am pregnant and my doctor wants me to work just 25 hours a week, but my employer told me that they need someone who can work 40 hours a week. So, they gave me separation papers to sign.

Is that legal? Do they have to hire me back after I have my baby?

Larisa
Palmyra, Maine

Answer: Dear Larisa: Pregnancy and pregnant women are given a special status in our society and our laws, and both are highly protected. In so many cases, like yours, however, that protection is surely needed, because so many employers view pregnancy as an inconvenience for them.

You may want to try to keep your job, or enhance your severance, by asserting your rights before signing the separation papers. Here are my thoughts:

1. Disability: Under federal laws and those of most states, you have a right to a “reasonable accommodation” to a disability, and that includes pregnancy. Is pregnancy a temporary “disability?” Yes, if it limits your ability to fully perform your duties. Is working 25 hours a week instead of 40 hours a week a “reasonable accommodation?” Almost certainly yes, unless your employer can honestly claim that (i) they would have to shut their doors if you were not there full time, and (ii) that they could not possibly get a part-timer to work the 15 hours weekly that you could not. It is highly unlikely that your employer could honestly claim those two things.

From what you have described, it sure looks like your employer has refused your request for a reduced workweek for your pregnancy/disability, in violation of federal law and the laws of most states.

You can get a copy of our Model Letter Requesting a Disability Accommodation at Work if you just [click here.] It shows you “What to Say, and How to Say It.”™ Delivered by Email – Instantly!

2. FMLA: Under the federal “FMLA” law, you have a right to take up to 12 weeks of unpaid leave if your health professional is willing to certify it is needed for your health, at one time or little by little, often called “intermittent leave.” The Family Medical Leave Act, or “FMLA,” is a federal law that provides you with time off, without pay, to address a medical problem. Of course, your employer is free to pay you if it chooses to during your time off. And, too, your employer is free to provide you with even more time off, if it chooses to.

From what you have described, it sure looks like your employer has refused your request for an intermittent leave under FMLA, and so has violated the FMLA law. Note that FMLA applies to employees of employers who have 50 or more employees. Many states, though, have laws that say, in effect, “If FMLA does not cover you because of the number of employees on your worksite, then our state law will.”

Act Wisely! Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered by Email to Your Printer.

3. Discrimination: It seems quite likely that you are being denied your job (as well as your right to a maternity leave) due to your pregnancy, violating both federal and state anti-discrimination laws. Apparently, from what you have written, all was fine with your job until you became pregnant, and it entailed some complications.

It seems that, if you never became pregnant, you would still have your job. In this way, it seems that your employer is likely in violation of the many federal and state laws that prohibit discrimination against women based on their pregnancy.

4. By asserting your rights, without a threatening tone, you might (a) get the 25-hour workweek, (b) preserve your job and right to return, or even (c) negotiate better severance. By means of a respectful email memo, sometimes we get what we want. It is always worth a try. Without seeming antagonistic or adversarial, you might want to suggest – preferably in an email – that you think that your internet research suggests to you that, under disability, FMLA and discrimination laws, you have a right to all you seek: 25 hour workweek, and return after maternity leave. Doing so might also give you more “leverage” in negotiating the terms of any separation, if you wish to go that route.

Is doing so a bit “scary?” Sure. Is doing so something that makes you a bit nervous? Sure. Afraid of anger in response. Totally understandable. But think of it this way: you are doing what you are doing so that you will be better able to support and care for your baby. And, too, it may result in your being more respected by your Employer. Thinking of it these ways will be the best way to get yourself over the “scary” and “nervous” stuff.

Thanks for writing in. Hope this is helpful. Best of luck with your pregnancy and delivery. You and your baby will be in my prayers.

My Best,
Al Sklover

P.S.: Telecommuting is sometimes a better way to address issues of those with disabilities or family medical issues. We offer a Model Memo Requesting Telecommuting or Flextime for your adaption to your own facts and circumstances. It shows you “What to Say, and How to Say It.”™ To get a copy, just [click here.] Delivered by Email – Instantly!

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About Alan L. Sklover

Alan L. Sklover, Employment Attorney and Career Strategist for over 35 years.

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and ‘uncommon common sense’ of Attorney Alan L. Sklover, the leading authority on “Negotiating for Yourself at Work.”